[2022] KEHC 11379 (KLR)

In re Estate of Peter Holi Mabia also Known as Holi Mavia (Deceased) (Succession Cause 833 of 2013) [2022] KEHC 11379 (KLR) (10 June 2022) (Judgment)

Neutral citation: [2022] KEHC 11379 (KLR)

Republic of Kenya

In the High Court at Kakamega

Succession Cause 833 of 2013

WM Musyoka, J

June 10, 2022

IN THE MATTER OF THE ESTATE OF PETER HOLI MABIA also known as HOLI MAVIA (DECEASED)

Judgment

1. The application that I am called upon to determine is a summons for revocation of grant, dated 13th October 2015. It is brought at the instance of Joseph Museti Liyona, who I shall refer hereafter as the applicant. It seeks that the grant made on 3rd March 2014, to Dorcas Maloba Shiboko, who I shall refer to hereafter as the administratrix, be revoked, and so should the certificate of confirmation of grant arising from it. He also seeks that Kakamega/Shikulu/1788 be reverted to the name of the deceased, from that of the administratrix. He also seeks that two succession causes, being Kakamega HCSC No. 650 of 2010 and Kakamega HCSC No. 833 of 2013, be consolidated. The administrator is accused of having obtained the grant fraudulently by making false statements or concealing material from the court, by means of untrue allegations of fact essential in point to justify the grant and on basis of defective proceedings.

2. The affidavit in support of the application was sworn by the applicant, on 13th October 2015. He avers that he brought Kakamega/Shikulu/1788 from the deceased in 1981, and he asserts that he is a beneficiary in his capacity as a purchaser of that property. He avers that the administratrix, and her sisters, Beatrice Mutimba Adala and Anjelina Akasa had knowledge of the sale. He settled on the land in 1981, and has been in occupation todate. He said that he set up his home on the land, with the knowledge of the three daughters of the deceased. He states that the parallel succession proceedings, Kakamega HCSC No. 650 of 2010, were initiated by a sister of the administratrix, known as Beatrice Mutimba Adala, and argues that the administratrix should have raised her objection in that cause instead of initiating the instant one. He asserts that the initiation of the parallel proceedings was done in bad faith, and was intended to deprive him of his peaceful occupation of Kakamega/Shikulu/1788. He calls for the consolidation of the two causes. He has attached a copy of the certificate of confirmation of grant issued in Kakamega HCSC No. 650 of 2010 on 29th October 2014 and that issued in the instant cause on 10th December 2014.

3. The administratrix has responded to the application, vide her affidavit, sworn on 16th March 2016. She asserts that the applicant is not a beneficiary of the estate of the deceased, and, for that reason, he was not entitled to notification of the initiation of these proceedings. She further says that this court has no jurisdiction to cancel title, and that Beatrice Mutimba Adala was of majority age and could raise these issues for herself. She asserts that if the applicant claims interest as a purchaser, then he should be before the land court. She pleads ignorance of the existence of Kakamega HCSC No. 650 of 2010. She accuses the applicant of colluding with Beatrice Mutimba Adala to deprive her of her inheritance. She states that she has filed Environment and Land Court No. 209 of 2015, against the applicant. She asserts that if the applicant has any claim to the land, he should agitate it in Environment and Land Court No. 209 of 2015. she has attached a copy of a plaint, dated 17th July 2015, allegedly filed in Kakamega HC ELC No. 209 of 2015, where she and Gilbert Muchesia Liyenzelo have sued the applicant.

4. The reply precipitated a response, by the applicant, by way of a further affidavit, sworn on 9th December 2017. He reiterates that he is a beneficiary of the estate by dint of being a creditor. He asserts that he bought the property from the deceased in 1981, during his lifetime, and that he has been in occupation since that year.

5. The application was heard orally. Only the applicant, Joseph Museti Liyona testified. He stated that he stood by his application dated 13th October 2015. He said he bought the land, and began to live on it in 2002. He said that the deceased never asked him to leave the land before he died. He stated that the administratrix had sued him over the land, but she and her co-plaintiff failed to prosecute the suit, and the same was dismissed. He said that he did a succession over the land, and the same was devolved to him, and he had certificate of confirmation of grant from that cause. He said that when he presented the certificate at the lands office for transmission, he found the land registered in the name of the administratrix.

6. At the close of the oral hearing, the applicant indicated that he would file written submissions. The applicant filed written submissions, dated 27th January 2022. I have read through them and noted the arguments made.

7. The application for determination is premised on section 76 of the Law of Succession Act, Cap 160, Laws of Kenya. The said provision states as follows:“Revocation or annulment of grantA grant of representation, whether or not confirmed, may at any time be revoked or annulled if the court decides, either on application by any interested party or of its own motion—(a)that the proceedings to obtain the grant were defective in substance;(b)that the grant was obtained fraudulently by the making of a false statement or by the concealment from the court of something material to the case;(c)that the grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant notwithstanding that the allegation was made in ignorance or inadvertently;(d)that the person to whom the grant was made has failed, after due notice and without reasonable cause either—(i)to apply for confirmation of the grant within one year from the date thereof, or such longer period as the court order or allow; or(ii)to proceed diligently with the administration of the estate; or(iii)to produce to the court, within the time prescribed, any such inventory or account of administration as is required by the provisions of paragraphs (e) and (g) of section 83 or has produced any such inventory or account which is false in any material particular; or(e)that the grant has become useless and inoperative through subsequent circumstances.”

8. Two succession causes were initiated with respect to the estate of the deceased herein, being, Kakamega HCSC No. 650 of 2010 and Kakamega HCSC No. 833 of 2013. It is not clear when the deceased died. In Kakamega HCSC No. 650 of 2010 the certificate of death placed on record is dated 16th February 2010, and indicates that the deceased died on 18th September 1994. The certificate of death in Kakamega HCSC No. 833 of 2013, dated 27th September 2013, indicates that he died on 5th May 1993. The cause in Kakamega HCSC No. 650 of 2010 was initiated on 22nd September 2010, by a daughter of the deceased known as Beatrice Mutimba Adala. She listed herself as the sole survivor of the deceased. A grant was made to her on 28th June 2011 and was issued on 1st July 2011 the cause in Kakamega HCSC No. 833 of 2013 was by the administratrix herein, and was initiated on 8th November 2013. She identified the survivors of the deceased as herself, Anjelina Akaja and Margaret Wokitsa. A grant of letters of administration intestate was made to her on 3rd March 2014, and issued on 4th March 2014. As stated above, the two grants were confirmed in 2014, that in Kakamega HCSC No. 650 of 2010 was confirmed on 27th October 2014, and a certificate of confirmation of grant issued on 29th October 2014, the property was devolved to the applicant herein; while that that in Kakamega HCSC No. 833 of 2013 was confirmed on 29th October 2014, and a certificate to that effect issued on 10th December 2014, the property was devolved upon the administratrix. In the run up to the confirmation in Kakamega HCSC No. 650 of 2010 the administratrix confirmed that she had had two surviving sisters, but she only mentioned, Anjelina. The administratrix was directed to avail her in court. She did not avail her, saying that she was ill, and eventually she filed an affidavit, sworn on 14th February 2013, to that effect. The administratrix in Kakamega HCSC No. 833 of 2013 was not disclosed in Kakamega HCSC No. 650 of 2010. The court then confirmed the grant. In the proceedings in Kakamega HCSC NO. 833 of 2013 of 29th October 2014, three individuals were in attendance, when the grant was confirmed, that is to say, Anjelina Akala, Margaret Wokitsa and the administratrix. They conceded to the property being devolved to the administratrix.

9. There should only be one succession cause, in respect of the estate of the deceased, for the cause is about the property of that one dead person, being distributed amongst his or her survivors and the beneficiaries of his or her estate, who ought to be the same individuals. Pursuing separate succession causes can only result in the situation similar to what obtains here, the court seized of the matters ordering devolution of the asset or assets to different individuals. Like in this case, the property, Kakamega/Shikulu/1788, was devolved to the applicant in Kakamega HCSC No. 650 of 2010 and to the administratrix in Kakamega HCSC No. 833 of 2013. The confirmation was done by the same Judge, Mrima J, in a span of two days: on 27th October 2014 in Kakamega HCSC No. 650 of 2010 and on 29th October 2014 in Kakamega HCSC No. 833 of 2013. To avoid that sort of folly, there should only be one cause and one grant per the intestate estate of one individual, regardless of whether the estate of that person has one asset or one hundred, or one child or one hundred children, or one wife or one hundred wives. The spectacle of having more than cause suggests abuse of process, and the way out is to consolidate the causes, revoke the grants made in all of the causes, set aside the confirmation orders made in all the causes, and cancel the certificates of confirmation of grant issued in all of them, and to make fresh appointments of administrators, and to have the distribution of the estate done afresh, by way of filing of a fresh application for confirmation of grant. The filing of parallel succession causes is enough for the court, on own motion, to revoke the grants in all the causes, and to have them consolidated. It is indicative of a defective process. See Re Estate of Luduska Hornik Platto (Deceased)[2012]eKLR (GBM Kariuki J), In Re Estate of Muturi Gatuku (Deceased)[2014] eKLR (Musyoka J), Rose Faith Mwawasi & another vs. Fatuma Athman Abud Faraj[2015] eKLR (Thande J) and In re Estate of Margaret Nduta Maina (Deceased) [2018] eKLR (Muigai J).

10. I find it unnecessary to consider all the other issues that have been raised in the application, for a grant can only be revoked once.

11. The final orders that I shall make in the circumstances are as follows:a.That I hereby allow the application dated 13th October 2015, and revoke the grants made in Kakamega HCSC No. 650 of 2010 and Kakamega HCSC No. 833 of 2013, set aside the confirmation orders in Kakamega HCSC No. 650 of 2010 and Kakamega HCSC No. 833 of 2013 and cancel the certificate of confirmation of grant issued in Kakamega HCSC No. 650 of 2010 and Kakamega HCSC No. 833 of 2013;b.That as a consequence of (a) above, I direct the Land Registrar responsible for Kakamega County, to cancel the transmission of Kakamega/Shikulu/1788 to the name of the administratrix herein, based on the cancelled certificate of confirmation of grant, and to revert it to the name of the deceased;c.That I hereby order consolidation of Kakamega HCSC No. 650 of 2010 and Kakamega HCSC No. 833 of 2013, and the lead file shall be Kakamega HCSC No. 833 of 2013;d.That I appoint Dorcas Maloba Shiboko, Beatrice Mutimba Shiboko, Anjelina Akasa and Margaret Wokitsa, administrators of the estate of the deceased herein, and a grant of letters of administration intestate shall issue to them accordingly;e.That as the applicant herein claims to have had bought the only asset of the estate from the deceased, I direct that confirmation of grant shall only be sought after it has been established whether or not the applicant had entered into a valid sale of land with the deceased and was entitled to get the property on question;f.That as the High Court has no jurisdiction to hear and determine any dispute on ownership and occupation of land, the applicant is hereby given three hundred and sixty-six days to initiate and prosecute a case at the Environment and Land Court to prove he purchased the land in terms of (e), above, in default of which the administratrices appointed above, shall have liberty to apply for distribution of the property through a summons for confirmation of grant;g.That the matter shall be mentioned on a date that I shall allocate at the delivery of this judgment for mention for compliance;h.That each party shall bear their own costs; andi.That any party aggrieved by any of the orders made above has leave if twenty-eight days to move the Court of Appeal appropriately.

12. It is so ordered.

DELIVERED, DATED AND SIGNED IN OPEN COURT AT KAKAMEGA THIS 10TH DAY OF JUNE 2022WM MUSYOKAJUDGEMr. Erick Zalo, Court Assistant.Mr. Abira, instructed by Mauwa & Co, Advocates, for the applicant.